The Fair Housing Act: HUD Oversight, Programs, and Activities

July 6, 2016 (R44557)
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Summary

The federal Fair Housing Act, enacted in 1968 as Title VIII of the Civil Rights Act (P.L. 90-284), prohibits discrimination in the sale, rental, or financing of housing based on race, color, religion, national origin, sex, familial status, and handicap. The Department of Housing and Urban Development (HUD), through its Office of Fair Housing and Equal Opportunity (FHEO), receives and investigates complaints under the Fair Housing Act and determines if there is reasonable cause to believe that discrimination has occurred or is about to occur.

State and local fair housing agencies and private fair housing organizations also investigate complaints based on federal, state, and local fair housing laws. In fact, if alleged discrimination takes place in a state or locality with its own similar fair housing enforcement agency, HUD must refer the complaint to that agency. Two programs administered by FHEO provide federal funding to assist state, local, and private fair housing organizations:

Another provision of the Fair Housing Act requires that HUD affirmatively further fair housing (AFFH). As part of this requirement, recipients of certain HUD funding—jurisdictions that receive Community Planning and Development grants and Public Housing Authorities—go through a process to certify that they are affirmatively furthering fair housing. In July 2015, HUD issued a new rule governing the process, called the Assessment of Fair Housing (AFH). Under the AFH, funding recipients will assess their jurisdictions and regions for fair housing issues (including areas of segregation, racially and ethnically concentrated areas of poverty, disparities in access to opportunity, and disproportionate housing needs), identify factors that contribute to these fair housing issues, and set priorities and goals for overcoming them. HUD will provide data for program participants to use in preparing their AFHs, and will include a tool that helps program participants through the AFH process.

Among other activities undertaken by HUD's FHEO are efforts to prevent discrimination not explicitly directed against protected classes under the Fair Housing Act. This includes a regulation to prohibit discrimination in HUD programs based on sexual orientation and gender identity, and guidance about the use of criminal background checks in screening applicants for housing.

FHEO also oversees efforts to ensure that clients with Limited English Proficiency (LEP) have access to HUD programs. Guidance from FHEO helps housing providers determine how best to provide translation services, and HUD also receives a small appropriation through the Fair Housing and Equal Opportunity account for the agency to translate documents and provide translation on the phone or at events. Another requirement overseen by FHEO is Section 3, which provides employment and training opportunities for low- and very low-income persons. Section 3 requirements apply to hiring associated with certain housing projects funded by HUD.


The Fair Housing Act: HUD Oversight, Programs, and Activities

Introduction

The Fair Housing Act was enacted as Title VIII of the Civil Rights Act of 1968 (P.L. 90-284).1 As initially enacted, the Fair Housing Act prohibited discrimination in the sale, rental, or financing of housing based on race, color, religion, and national origin. In 1974, Congress added sex as a protected category (the Housing and Community Development Act, P.L. 93-383), and in 1988 it added familial status and handicap (the Fair Housing Amendments Act, P.L. 100-430). The Fair Housing Act also prohibits retaliation when individuals attempt to exercise their rights (or assist others in exercising their rights) under the law.2

This report discusses the Fair Housing Act from the perspective of the activities undertaken and programs administered by the Department of Housing and Urban Development (HUD) and its Office of Fair Housing and Equal Opportunity (FHEO). For information about legal aspects of the Fair Housing Act, such as types of discrimination, exceptions to the law, and discussion of court precedent, see CRS Report 95-710, The Fair Housing Act (FHA): A Legal Overview, by [author name scrubbed] and [author name scrubbed].

Some of what HUD and FHEO do applies to housing providers generally; for example, in enforcing the anti-discrimination provisions of the Fair Housing Act. However, other HUD and FHEO authority may only extend to the programs administered by the agency.

HUD and FHEO play a role in enforcing the Fair Housing Act by receiving, investigating, and making determinations regarding complaints of Fair Housing Act violations. FHEO oversees federal funding to state, local, and nonprofit organizations that investigate fair housing complaints based on federal, state, or local laws. FHEO also administers the Fair Housing Assistance Program and Fair Housing Initiatives Program.

The Fair Housing Act requires that HUD affirmatively further fair housing. While not defined in statute, affirmatively furthering fair housing has been found by courts to mean doing more than simply refraining from discrimination, and working to end discrimination and segregation.3 In July 2015, HUD released new regulations that govern how certain recipients of HUD funding (those receiving Community Planning and Development formula grants and Public Housing Authorities) must affirmatively further fair housing. In addition, HUD and FHEO have taken steps to protect against discrimination not explicitly directed against members of classes protected under the Fair Housing Act—preventing discrimination in HUD programs based on sexual orientation and gender identity and providing guidance on how housing providers screen for criminal background.

After a brief summary of the Fair Housing Act, this report discusses each of these Fair Housing activities, as well as two other initiatives administered by FHEO, Limited English Proficiency and Section 3, the latter of which provides economic opportunities for low- and very low-income persons.

A Brief Overview of the Fair Housing Act

The Fair Housing Act protects specified groups from discrimination in obtaining and maintaining housing. The act applies to the rental or sale of dwelling units with exceptions for single-family homes (as long as the owner does not own more than three single-family homes) and dwellings with up to four units where one is owner-occupied.4 Discrimination based on the following characteristics is prohibited under the act:

Note that states and localities may have fair housing laws with broader protections than those encompassed in the federal Fair Housing Act, including such protected classes as age, sexual orientation, or source of income (prohibiting discrimination against those relying on government subsidies to pay for housing).

The Fair Housing Act protects individuals in the covered classes from discrimination in a range of activities involving housing. Some of the specific types of activities that are prohibited include the following:12

HUD's Involvement in Enforcement of the Fair Housing Act

HUD, together with state and local fair housing agencies and private fair housing organizations, investigates fair housing complaints. HUD receives complaints from individuals who believe they have been subject to discrimination or are about to experience discrimination. If the discrimination takes place in a state or locality with its own similar fair housing enforcement agency, sometimes referred to as a Fair Housing Assistance Program (FHAP) agency, HUD must refer the complaint to that agency.15 (See the "Fair Housing Assistance Program (FHAP)" section of this report for more information about state and local agencies.) In addition, if a complaint involves a challenge to zoning or land use laws, then HUD must refer the case to the Department of Justice (DOJ).16 HUD also refers complaints with possible criminal violations or patterns or practices of discrimination to DOJ.17

Once an individual has filed a complaint with HUD, or HUD has filed a complaint on its own initiative, a notice is served on the party alleged to have discriminated. That party, in turn, has the opportunity to file a response to the complaint.18 HUD investigates complaints to determine if there is reasonable cause to believe a discriminatory practice has occurred or is about to occur.19 While an investigation is ongoing, HUD may also engage in conciliation, to try to reach an agreement between the parties.20 Conciliation requires voluntary participation of both parties. Relief can be sought both for the aggrieved party and for the public interest. If parties do not reach an agreement, then HUD determines whether there is reasonable cause to believe discrimination occurred or was about to occur.21

Aggrieved parties may seek actual monetary damages. The law also allows an administrative law judge to impose a civil penalty "to vindicate the public interest" (amounts vary based on whether there have been previous infractions) and to order injunctive relief.26

If an individual withdraws a complaint, no longer cooperates, or cannot be reached for follow-up, then HUD closes the complaint as an administrative closure.27

In FY2013, there were 1,849 complaints filed with HUD.28 Of those, 2% led to HUD issuing a charge, 37% were settled through conciliation, and 35% resulted in a finding of no reasonable cause.29 The remainder of complaints either had an administrative closure (where complainants did not continue to pursue their complaints) or were referred to DOJ. For more information on complaints, see "HUD and FHAP Agency Complaint and Enforcement Data."

HUD Funding for State, Local, and Private Nonprofit Fair Housing Programs

HUD oversees two programs that promote fair housing at the state and local level: the Fair Housing Assistance Program (FHAP) and the Fair Housing Initiatives Program (FHIP). FHAP funds state and local fair housing agencies, and FHIP funds eligible entities that largely include private nonprofit organizations.30 These recipients in turn supplement HUD's efforts to promote fair housing, detect discrimination, investigate complaints, and enforce the fair housing law. The following subsections describe FHAP and FHIP and provide funding levels for the programs.

Fair Housing Assistance Program (FHAP)

FHAP funds state and local agencies that HUD certifies as having their own laws, procedures, and remedies that are substantially equivalent to the federal Fair Housing Act.31 The Fair Housing statute requires HUD to refer complaints that violate state and local fair housing laws to the certified agencies responsible for enforcing them (in jurisdictions that have such agencies).32 At the time of the enactment of the Fair Housing Act, multiple states and local jurisdictions had enacted their own laws and established agencies for their enforcement.33

Funding to assist state and local agencies in enforcing fair housing laws was first provided in the FY1980 Appropriations Act for HUD (P.L. 96-103) after a budget request from the Carter Administration. The FY1980 budget justifications discussed limitations in the ability of states to handle fair housing complaints referred from HUD, and that in many cases complaints had to be sent back to HUD for processing.34 The President's budget proposed funding for financial and technical assistance to assist states in handling fair housing complaints, with first-year funding provided for capacity building, and subsequent years' funding based on the number of complaints processed by each agency. Funding continues to be based on the number of complaints handled by FHAP agencies. Congress followed the Administration's request and appropriated $3.7 million for the program. The appropriation initially supported 31 state and local agencies.35 Currently, approximately 89 state and local agencies receive funding, which represents a gradual reduction over recent years as agencies withdrew from the program; in FY2009, 113 FHAP agencies were funded.36

Activities for which FHAP agencies receive funding include capacity building, processing complaints, administrative costs, training, and special enforcement efforts.37 When a FHAP agency receives a fair housing complaint, it goes through much the same process as HUD.38 The agency conducts an investigation, and, as the investigation is ongoing, works on conciliation with the parties. In FY2013, there were 6,519 complaints filed with FHAP agencies around the country.39 Of these, 6% led to FHAP agencies issuing a charge, 19% were settled through conciliation, and 52% resulted in a finding of no reasonable cause.40 The remainder of complaints had an administrative closure. For more information on complaints, see "HUD and FHAP Agency Complaint and Enforcement Data."

Fair Housing Initiatives Program (FHIP)

The Fair Housing Initiatives Program (FHIP) was created as part of the Housing and Community Development Act of 1987 (P.L. 100-242) as a demonstration program and was made permanent in 1992 (P.L. 102-550). Through FHIP, HUD enters into contracts or awards competitive grants to eligible entities—including state and local governments, nonprofit organizations, or other public or private entities, including FHAP agencies—to participate in activities resulting in enforcement of federal, state, or local fair housing laws, and for education and outreach. The majority of FHIP grantees are private nonprofit organizations.

FHIP was added to the Fair Housing law in recognition of the fact that additional assistance was needed to detect fair housing violations and enforce the law. In particular, FHIP authorized funding for organizations to conduct testing whereby matched pairs of individuals, one with protected characteristics and the other without, both attempt to obtain housing from the same providers.

HUD funds three activities that are provided for under the statute:41

Organizations that receive FHIP funding investigate fair housing complaints brought to them by individuals and also initiate their own investigations. If there is evidence that discrimination occurred, then FHIP agencies can help individuals file complaints with HUD or a state or local FHAP agency, or bring a private action in court. In FY2015, 118 grants were awarded to groups around the country.47

Funding for FHAP and FHIP

In FY2016, Congress appropriated just over $24 million for FHAP and $39 million for FHIP, a reduction from peak funding, which occurred between FY2010 and FY2012. In FY2010, FHAP funding reached $29 million and in FY2012 FHIP funding reached $42.5 million. Prior to FY2010, funding for FHIP was significantly lower than what it has been since that time. In FY2010, funding for FHIP jumped from $27.5 million, at that point the most that had ever been appropriated for the program, to $42.1 million. The President's budget for FY2010 proposed increased funding for a mortgage fraud prevention initiative, through FHIP. And while Congress appropriated additional funds for FHIP, it was not done as a separate set-aside for mortgage fraud prevention.48 The same year, funding for FHAP increased by nearly $4 million. While funding for FHAP has fallen to its previous levels, funding for FHIP has remained well above the FY2009 level, ranging between $39 million and $42 million. Figure 1, below, shows these funding trends. For exact amounts appropriated since FY1996, see the Appendix.

Figure 1. FHAP and FHIP Funding Trends, FY1996-FY2016

Source: For dollar amounts and data source, see Table A-1.

HUD and FHAP Agency Complaint and Enforcement Data

A Note About Fair Housing Data

HUD issues annual reports that contain the number of fair housing complaints it receives and investigates, as well as the number received by FHAP agencies. Agencies that receive FHIP funds also investigate fair housing complaints, but HUD does not include FHIP agency complaints and investigations in its reports. The National Fair Housing Alliance (NFHA), a nonprofit organization, collects data from its member organizations (some of which receive FHIP funds) about the number of fair housing complaints investigated.49 However, the NFHA data includes organizations in addition to those that receive FHIP funding, and also includes complaints that are eventually referred to HUD and FHAP agencies, so some numbers in the NFHA reports may duplicate those in the HUD reports. In addition, NFHA data may include complaints based on state and local laws with protected categories not covered by the federal Fair Housing Act (such as discrimination based on source of income, age, or sexual orientation). As a result, NFHA data is not included in this section. Yet it is important to note that FHIP agencies receive thousands of complaints a year, likely exceeding HUD and FHAP complaints combined, so the data presented here is not a complete picture of fair housing complaints.50

HUD reports the number of fair housing complaints it receives as well as those received by FHAP agencies. In recent years, the number of complaints filed with both HUD and FHAP agencies has declined, from a high of 10,552 in FY2008 to 8,368 in FY2013 (the most recent year for which HUD data are available).51 During this time period, the number of FHAP agencies decreased from 108 operating at the end of FY2008 to 90 at the end of FY2013.52 In addition, complaints received by private fair housing organizations (those not receiving FHAP funding), as reported by the National Fair Housing Alliance, increased between FY2008 and FY2013.53 See Figure 2 for HUD and FHAP agency complaints from FY2005-FY2013.

Figure 2. Number of Complaints Filed with HUD and FHAP Agencies

FY2005-FY2013

Source: HUD Annual Reports on Fair Housing, FY2008-FY2013, available at http://portal.hud.gov/hudportal/HUD?src=/annualreport.

Complaints filed with HUD and FHAP agencies rarely result in charges against housing providers. In fact, in many cases there is a finding of no reasonable cause to pursue the complaint—35% of complaints for HUD and 52% for FHAP agencies in FY2013. HUD conciliated and settled 37% of cases in FY2013, with FHAP agencies doing so for 19% of cases. Only 2% of complaints to HUD and 6% of those to FHAP agencies resulted in a charge being filed in FY2013. Approximately a quarter of complaints for both HUD and FHAP agencies were administrative closures, meaning generally that complainants did not continue to pursue their complaints. See Figure 3 for HUD and FHAP agency complaint dispositions in FY2013.

Figure 3. HUD and FHAP Agency Complaint Disposition

FY2013

Source: HUD, Annual Report on Fair Housing, FY2012-2013, November 7, 2014, http://portal.hud.gov/hudportal/documents/huddoc?id=2012-13annreport.pdf.

Recent years have brought a change in the types of complaints received by HUD and FHAP agencies. Ten years ago, in FY2005, the percentages of complaints based on race and disability were nearly equal: 38% and 41%, respectively. However, by FY2013 the percentage of complaints based on disability increased to 53%, and race declined to 28%. Other protected categories—familial status, national origin, sex, religion, and color—have remained at about the same levels during the same time period. HUD also reports the number of complaints based on retaliation, which have increased from approximately 5% in FY2005 to 11% in FY2013. See Figure 4 for complaints filed by protected class in FY2013.

The high percentage of complaints based on disability may in part have to do with additional protections for people with disabilities. Unlike other protected statuses, the Fair Housing Act imposes affirmative duties on housing providers to make "reasonable accommodations" for individuals with disabilities. Under the law, it is discriminatory to refuse to allow residents with disabilities to make physical changes to the premises, at their own expense, in order to afford them full enjoyment of the premises.54 Examples of reasonable accommodations include changes to a unit such as widening doorways, installing a ramp or grab bars, or lowering cabinets.55 In addition, the law gives residents with disabilities the right to request "reasonable accommodations" in the rules, policies, practices, or services that may ordinarily apply to housing residents. It is considered discrimination under the Fair Housing Act to refuse to make a reasonable accommodation in order to give residents with disabilities an equal opportunity to use and enjoy their dwelling unit.56 Examples of reasonable accommodations include making parking spaces available to residents with disabilities or allowing assistance animals in a property that does not otherwise allow pets.57 An accommodation is not considered reasonable if it imposes an undue financial or administrative burden, or if it fundamentally alters the nature of the housing provider's operations.58 In FY2013, the failure to make a reasonable accommodation was the second-most frequent issue raised in complaints, representing 30% of HUD and FHAP complaints (after discriminatory terms, conditions, privileges, services, and facilities in the rental or sale of property).59

Figure 4. HUD and FHAP Complaints Filed by Protected Status

FY2005-FY2013

Source: HUD Annual Reports on Fair Housing, FY2008-FY2013, available at http://portal.hud.gov/hudportal/HUD?src=/annualreport.

Other HUD Efforts to Prevent Discrimination in Housing

In recent years, HUD has issued regulations and guidance to protect individuals from discrimination that may not be explicitly directed against protected classes under the Fair Housing Act. In one case, HUD used its authority to prevent discrimination in the programs it administers by issuing regulations prohibiting discrimination based on sexual orientation and gender identity. In another instance, HUD issued guidance applicable to all housing providers covered by the Fair Housing Act, applying the law to the use of criminal background checks when screening prospective residents, which could result in discrimination based on race.

HUD's Equal Access to Housing Regulations

The Fair Housing Act does not expressly protect individuals from discrimination based on sexual orientation or gender identity. (Note, however, that discrimination based on nonconformity with gender stereotypes may be covered by the Fair Housing Act as discrimination based on sex.60) However, HUD, pursuant to its charge to ensure equal access to its programs, and to provide "decent housing and a suitable living environment for every American family," published a final rule in 2012 providing for equal access to HUD housing programs regardless of sexual orientation or gender identity.61 The regulations promulgated by the rule apply to all HUD housing programs, including loan programs. Housing in these programs must be made available without regard to actual or perceived sexual orientation, gender identity, or marital status.62 In addition, property owners, program administrators, and lenders may not inquire about sexual orientation or gender identity of an applicant for or occupant of HUD-insured or HUD-assisted housing.63

The regulations contained an exception to the prohibition on inquiries into sex when an individual is an applicant or occupant of temporary emergency shelter where there may be shared bedrooms or bathrooms or to determine the number of bedrooms to which a family is entitled. However, the exception resulted in a number of commenters to the proposed rule expressing concern about transgender individuals' ability to gain access to single-sex shelters in accordance with their gender identity. While HUD noted that it was not mandating a policy on placement of transgender persons, it said it would monitor how programs operate and issue additional guidance if necessary.

In February 2015, based on this monitoring, HUD followed up by issuing a notice governing Community Planning and Development (CPD) programs—Community Development Block Grants, HOME, Housing Opportunities for Persons with AIDS (HOPWA), Emergency Solutions Grants (ESG), and the Continuum of Care program.64 In the notice, HUD clarified that it expected placement in single-sex shelters to occur in accordance with an individual's gender identity. HUD followed this notice, in November 2015, by releasing a proposed rule that would apply to HUD CPD programs.65 The rule would require that placement in facilities with shared sleeping and/or bath accommodations occur in conformance with a person's gender identity unless the person has health or safety concerns. In these cases, shelter operators should provide equivalent alternative accommodations either itself or through another provider. In addition, the rule proposed to remove the paragraph forbidding providers from asking about sexual orientation and gender identity so as not to "hinder a provider from making an appropriate placement decision."66

The proposed rule would also update the definition of gender identity as it applies to all HUD programs and define "perceived" gender identity. The 2012 Equal Access to Housing rule defined gender identity as actual or perceived gender-related characteristics.67 The new definition of gender identity would be "the gender with which a person identifies, regardless of the sex assigned to that person at birth." The proposed rule defines perceived gender identity as "the gender with which a person is perceived to identify based on that person's appearance, behavior, expression, other gender-related characteristics, or sex assigned to the individual at birth."68 As of the date of this report, HUD has not released a final rule regarding placement in CPD programs in accordance with gender identity.

Guidance on Use of Criminal Background Checks

In April 2016, HUD's Office of General Counsel released guidance applying the Fair Housing Act to use of criminal background checks in screening prospective tenants for housing.69 Unlike HUD's regulations regarding discrimination based on sexual orientation and gender identity, the guidance is directed at all housing providers subject to the Fair Housing Act, not just HUD programs. While individuals with a record of arrests or convictions are not protected under the Fair Housing Act, HUD's guidance noted that African American and Hispanic individuals are disproportionately represented in the criminal justice system, and that screening for criminal records could have discriminatory effect or disparate impact based on race or national origin, which may be prohibited under the act. For more information about discriminatory effects, also called disparate impact, see CRS Report R44203, Disparate Impact Claims Under the Fair Housing Act, by [author name scrubbed].

HUD's guidance on this issue states, that in screening for criminal history (including arrest records), "arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification."70 If a housing provider does take criminal history into account, HUD's guidance states that the policy should be tailored to serve a "substantial, legitimate, nondiscriminatory interest" and consider the particulars of an individual's circumstances such as type of crime and amount of time that has passed since a conviction occurred.71

Requirement for HUD and Grant Recipients to Affirmatively Further Fair Housing (AFFH)

In addition to prohibiting discrimination, the Fair Housing Act, since its inception, has required HUD and other federal agencies that administer programs related to housing and urban development to administer their programs in a way that affirmatively furthers fair housing.72

What "affirmatively further fair housing" (AFFH) means is not defined in statute. Various courts, in decisions regarding HUD's obligations, have concluded that it means more than refraining from discrimination.73 For example, a federal court decision in 1973 interpreting the AFFH section of the Fair Housing Act regarding residents of public housing stated

Action must be taken to fulfill, as much as possible, the goal of open, integrated residential housing patterns and to prevent the increase of segregation, in ghettos, of racial groups whose lack of opportunities the Act was designed to combat.74

A 1987 federal appellate court decision looked at the legislative history of the Fair Housing Act, saying that the "law's supporters saw the ending of discrimination as a means toward truly opening the nation's housing stock to persons of every race and creed." And with that goal in mind, the court stated

This broader goal suggests an intent that HUD do more than simply not discriminate itself; it reflects the desire to have HUD use its grant programs to assist in ending discrimination and segregation, to the point where the supply of genuinely open housing increases.75

In addition to HUD, the AFFH requirement has also been applied, via statute, regulation, and competitive grants, to recipients of HUD funding. The requirement applies to communities, states, and insular areas that receive formula funds through the Community Development Block Grant (CDBG), HOME Investment Partnerships, Housing Opportunities for Persons with AIDS (HOPWA), and Emergency Solutions Grants (ESG) programs, as well as to Public Housing Authorities (PHAs) that administer both Public Housing and Section 8 programs.76 Applicants for HUD's competitive grants are required to certify that they will affirmatively further fair housing as part of the grant application process.77

AFFH Process for Specific HUD Grantees

For a number of years, to fulfill the requirement of affirmatively furthering fair housing, HUD required that certain grantees go through a specific process called an Analysis of Impediments (AI). The grantees required to go through the process were communities that receive formula funding through the CDBG, HOME, HOPWA, and ESG programs, as well as PHAs. The jurisdictions receiving formula grants were to go through the AI process as part of the consolidated planning process that they participate in to receive the grants, and PHAs as part of their PHA plan.78

On July 16, 2015, HUD issued a final rule changing the process through which these formula grantees and PHAs will affirmatively further fair housing, a process called the Assessment of Fair Housing (AFH).79 Together, the communities receiving formula grants and PHAs are called "program participants." The AFFH final rule was published two years after a proposed rule was released (on July 19, 2013) and received more than 1,000 comments.80 The rule has been controversial. While some commenters expressed support for the rule as a way to increase housing opportunity and attain the goals of the Fair Housing Act, others contended that it intrudes on the authority of local jurisdictions and constitutes social engineering.81 Other concerns about the rule included the potential cost of preparing AFHs, especially for small jurisdictions and PHAs; whether investment in racially and ethnically concentrated areas of poverty could be prioritized; the fact that program participants may be unable to change the conditions affecting fair housing; and uncertainty about how HUD will enforce the rule. There have been amendments introduced as part of both the FY2016 and FY2017 appropriations processes to prohibit funds appropriated by the HUD funding bill from being used to carry out the AFFH rule.82

The requirements of the new AFFH rule will apply to program participants based on the three- or five-year cycle when their consolidated or PHA five-year plans are due. The year in which the first AFH is due varies, with entitlement communities receiving CDBG grants greater than $500,000 possibly submitting an AFH as early as 2016, and other grantees and PHAs having later start dates.83 In addition to the rule, HUD has released proposed assessment tools to help program participants analyze the housing situations in their jurisdictions. The following subsections describe how program participants demonstrated compliance with the affirmatively furthering fair housing requirement prior to implementation of the new rule, and how the new rule is to operate.

The Old Process: Analysis of Impediments

Prior to release of the final AFFH rule, the regulations governing both CDBG recipients and the consolidated plan process, which applies to HOME, HOPWA, ESG, and CDBG recipients, provided that in order to satisfy the requirement to affirmatively further fair housing, recipient communities must conduct an analysis of impediments:

the certification that the grantee will affirmatively further fair housing shall specifically require the grantee to assume the responsibility of fair housing planning by conducting an analysis to identify impediments to fair housing choice within its jurisdiction, taking appropriate actions to overcome the effects of any impediments identified through that analysis, and maintaining records reflecting the analysis and actions in this regard.84

Regulations governing PHA annual plans had similar language regarding the identification of impediments to fair housing and addressing them.85 Through a report issued in 1996, the Fair Housing Planning Guide, HUD defined what it meant to affirmatively further fair housing and gave greater guidance surrounding the AI process for CDBG, HOME, HOPWA, and ESG recipients.86 Pursuant to the HUD guidance, program participants were to identify impediments to fair housing within their communities and suggest steps to address those impediments.

The guide defined impediments to fair housing choice as "Any actions, omissions, or decisions taken because of race, color, religion, sex, disability, familial status, or national origin which restrict housing choices or the availability of housing choices," as well as those having the effect of restricting housing choice and availability.87 Communities were to identify impediments using local information and data. The guide also suggested steps a recipient community could take to address impediments. Recipients were to keep written records of their analysis and actions taken as a result of the analysis.

HUD expected jurisdictions to use data in their analysis, but did not provide the data.88 HUD encouraged jurisdictions to communicate the findings to government officials, policymakers, community groups, and the general public, but there was no public process required for AIs, and results of an AI were not required to be made public.89 There was also no requirement that materials be submitted to HUD.90 Recipient communities were to submit a summary of the AI and any accomplishments with the consolidated plan performance report, and to complete or update an AI every 3-5 years (depending on when the consolidated plan was due).91

Both HUD, in a report issued in 2009, and the Government Accountability Office, in a report issued in 2010, found weaknesses in the AI process.92 Both agencies requested AIs from a sample of jurisdictions. They found that AIs were outdated and that quality was uneven. GAO reported that among current AIs, many lacked timelines for accomplishing goals. A limitation identified by GAO as contributing to the problems was that regulations included very few requirements regarding AIs, with most procedures suggested in HUD guidance. GAO recommended that HUD issue a new regulation governing AFFH and include standards and a format for grantees to follow, require grantees to include time frames for implementing their recommended changes, and require grantees to submit their plans to HUD.93

The New Rule: The Assessment of Fair Housing

The new AFFH rule, for the first time, puts in place detailed regulations that govern the process of affirmatively furthering fair housing. The rule applies to the same entities that had an obligation to affirmatively further fair housing previously: state and local governments and insular areas receiving CDBG, HOME, HOPWA, and ESG grants, and PHAs. However, the rule defines more specifically what affirmatively furthering fair housing means, provides for a new process called an Assessment of Fair Housing (AFH) instead of the AI, provides data for program participants to use in preparing their AFHs, and includes a tool that helps program participants through the AFH process. In addition, because program participants must submit and have their AFHs approved by HUD, enforcement and results may be different.

The Assessment of Fair Housing (AFH)

The AFFH rule defines "affirmatively furthering fair housing" as

taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics. Specifically, affirmatively furthering fair housing means taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws. The duty to affirmatively further fair housing extends to all of a program participant's activities and programs relating to housing and urban development.94

Prior to the new rule, the term had not been defined in regulation. Program participants will comply with the AFFH requirement by completing an AFH.

The AFH has several steps that program participants are to take:95

Program participants are to conduct the analysis for the programs they administer, the jurisdiction, and the region.101 They must ensure that members of the community have the opportunity to participate in the AFH by communicating in a way that reaches the broadest possible audience.102

HUD will provide data to help program participants identify fair housing issues, and an assessment tool that prompts program participants to think about issues and contributing factors and how to use HUD data to inform the process.

HUD encourages program participants to collaborate on an AFH.103 For example, PHAs located within a CDBG entitlement area may work with each other or together with the city/county receiving CDBG funds. Two or more program participants that complete an AFH together are called "joint participants."104 In addition, two or more joint participants may collaborate and submit a single AFH as long as at least two joint participants are consolidated plan participants (i.e., not consisting only of PHAs).105

HUD will not approve an AFH if it does not comply with fair housing or civil rights requirements, or if it is substantially incomplete.106 If HUD does not approve an AFH, it will notify the program participants involved, explain why the AFH was not accepted, and provide guidance on how to comply.107 Ultimately, if a program participant does not have an accepted AFH, then HUD will disapprove their consolidated or PHA plan.108 In addition, program participants must certify that they will affirmatively further fair housing as part of their consolidated and PHA plans.109 HUD may challenge the validity of the certification based on a program participant's failure to meet affirmatively furthering fair housing requirements.110

While HUD will review each AFH to make sure it includes required components, the rule does not indicate how HUD will evaluate goals set by program participants and progress toward those goals. In the comments accompanying the final rule, HUD stated that "it is not HUD's intention to dictate to program participants the decisions that they make based on local conditions. As stated in the proposed rule, through this new AFH process, HUD is not mandating specific outcomes for the planning process."111 The process encourages accountability at the local level by making the process and AFH available to the public.

Assessment Tool

As of the date of this report, HUD had issued a final assessment tool for entitlement communities, while tools for states, insular areas, and PHAs were in the comment period. The assessment tools are to help program participants work through the AFH. While there are different tools for each category of program participant, the content is similar.

The assessment tools provide instructions to program participants as they complete each portion of the AFH. For example, the assessment tools direct program participants how to access and use HUD data for determining whether fair housing issues exist (such as segregation and racially or ethnically concentrated areas of poverty) and prompts program participants for information about these issues. The assessment tools also contain comprehensive lists of possible contributing factors to fair housing issues, such as community opposition, lack of investment, zoning laws, location of affordable housing, etc.

Table 1. What Is New About the AFFH Process?

Procedural Elements of AFH Compared to AI

Element of Plan

Assessment of Fair Housing
(AFH)

Analysis of Impediments
(AI)

Program participants required to identify barriers to fair housing and propose steps to overcome them

X

X

The process is governed by regulations rather than HUD guidance

X

 

HUD provides uniform data to program participants

X

 

Program participants must ensure the opportunity for public participation

X

 

Collaboration among program participants is allowed and encouraged

X

 

Reports are submitted to HUD

X

 

Reports are made publicly available

X

 

Regulations provide that reports must be updated

X

 

Source: CRS analysis of U.S. Department of Housing and Urban Development, "Affirmatively Furthering Fair Housing," 80 Federal Register 42272-42371, July 16, 2015; and U.S. Department of Housing and Urban Development, Fair Housing Planning Guide Volume 1, March 1996, http://www.hud.gov/offices/fheo/images/fhpg.pdf.

Other Requirements Overseen by HUD's Office of Fair Housing and Equal Opportunity

In addition to administering fair housing programs and enforcing the law, HUD's Office of Fair Housing and Equal Opportunity (FHEO) oversees the Section 3 requirement and HUD's compliance with limited English proficiency requirements. Section 3 requires certain recipients of HUD funds to make attempts to hire and train low-income persons to work on projects for which the recipients receive federal funding. Limited English proficiency (LEP) requirements are federal government-wide and are meant to ensure that LEP individuals have access to federal programs.

Section 3, Economic Opportunities for Low- and Very Low-Income Persons

Section 3 of the Housing and Urban Development Act of 1968 (P.L. 90-448, as amended) is meant to provide employment and training opportunities for low- and very low-income persons, particularly those residing in assisted housing. The law applies to Public and Indian Housing Authorities in their use of operating and capital funds, and to grant recipients of HUD housing and community development construction or rehabilitation funds that exceed $200,000, or the recipients' contractors with contracts exceeding $100,000.112

Public and Indian Housing Authorities: The law requires that Public and Indian Housing Authorities and those they contract with "make their best efforts" to provide employment opportunities for low- and very low-income individuals in the projects that they undertake with HUD funding. Housing authorities are to prioritize, in this order, individuals living in the housing for which funds are used, those living in other HUD-assisted housing, participants in the Department of Labor program YouthBuild, and those living in the metropolitan area where the funds are used. In addition, housing authorities and their contractors are to make their best efforts to contract with businesses that provide economic opportunities for low- and very-low income individuals, using the same priorities for individuals who are employed by the businesses.

Other HUD Funding Recipients: For entities that receive other HUD funding for housing construction or rehabilitation and community development projects, the HUD Secretary is to ensure that "to the greatest extent feasible" the fund recipients provide opportunities for training and employment related to the project to low- and very low-income residents in the metropolitan area. Priority is to be given to those residing in the service area of the project or neighborhood where it is located and to YouthBuild participants. The law also directs the Secretary to ensure, to the greatest extent feasible, that recipients of funds for these projects contract with businesses that provide economic opportunities for low- and very low-income residents.

Section 3 does not apply if housing authorities or other fund recipients do not need to employ additional people to undertake a project.113 Fund recipients can demonstrate compliance with the "greatest extent feasible" requirement by meeting numerical goals set out in the regulations, but meeting these numerical goals is not required.114 When interim program regulations were last published for Section 3, in 1994, the appendix to the regulations included examples of efforts Section 3-covered entities could undertake for training and employment opportunities.115 On March 27, 2015, HUD released proposed Section 3 regulations to replace the interim regulations published in 1994.116 Among the changes in the proposed rule would be clarification of what it means to provide employment and training opportunities "to the greatest extent feasible."117 Under the proposed rule, covered entities would either meet numerical goals or provide written justifications explaining what actions were taken and impediments encountered in trying to meet the goal.

Limited English Proficiency

FHEO oversees HUD's efforts to ensure that persons with limited English proficiency have access to HUD programs. Title VI of the Civil Rights Act prohibits discrimination in federally assisted programs on the basis of race, color, or national origin.118 One aspect of this prohibition has been ensuring that LEP individuals have access to federal programs (lack of access may be considered discrimination based on national origin119). In 2000, President Clinton signed an executive order to require federal agencies to publish guidance for recipients of federal funding about ensuring that LEP individuals have access to programs and services.120 In 2007, HUD issued final guidance to recipients of HUD funding about factors to consider in meeting the needs of LEP clients.121

HUD's guidance applies to all recipients of funding, including state and local governments, PHAs, and for-profit and nonprofit housing providers, and also includes recipients that receive funds indirectly, such as subgrantees of state CDBG or HOME grants. The guidance directs recipients "to take reasonable steps to ensure meaningful access to their programs and activities by LEP persons."122 The guidance lays out four factors for recipients to consider in determining how to serve LEP clients: (1) the number or proportion of LEP clients likely to be served or encountered by the recipient, (2) how frequently eligible LEP persons are encountered by the recipient, (3) the nature and importance of the program or service in people's lives, and (4) the recipient's resources and the cost of LEP services.123

Depending on a recipient's analysis of these factors, it may opt to provide translation services on an as-needed basis by contracting with translation companies; or, if LEP clients are more frequent, it may decide to hire either a translator or bilingual staff. Recipients may also decide to have a wide number of documents translated or translate only the most critical documents. Enforcement of LEP requirements occurs through such avenues as compliance reviews or investigating complaints.124

Congress set aside $400,000 for HUD to translate materials as part of the FY2008 Consolidated Appropriations Act (P.L. 110-161) and has continued to set aside funding since that time, ranging from $300,000 to $500,000. Funding has been used to translate HUD documents, provide translation services at HUD events, provide phone translations for callers to HUD, and acquire technology, among other services.125 Further, the campaign "HUD Speaks," launched in 2015, is meant to communicate the availability of HUD services to LEP persons through posters, desk guides, and language cards where LEP clients can indicate their native language.126

Appendix. FHAP and FHIP Funding Table

The table below shows FHAP and FHIP funding from FY1996 to the present.

Table A-1. Funding for FHAP and FHIP, FY1996-FY2017

(Dollars in millions)

 

Fair Housing Assistance Program (FHAP)

Fair Housing Initiatives Program (FHIP)

Fiscal Year

President's Budget Request

Appropriation

President's Budget Request

Appropriation

1996

15.0

13.0

30.0

17.0

1997

15.0

15.0

18.0

15.0

1998

15.0

15.0

24.0

15.0

1999

23.0

16.5

29.0

23.5

2000

20.0

20.0

27.0

24.0

2001

21.0

22.0

29.0

23.9

2002

23.0

25.6

22.9

20.3

2003

25.6

25.5

20.3

20.1

2004

29.8

27.6

20.3

20.1

2005

27.1

26.3

20.7

19.8

2006

22.7

25.7

16.1

19.8

2007

24.8

25.7

19.8

19.8

2008

24.8

25.6

20.2

24.0

2009

25.0

25.5

26.0

27.5

2010

29.5

29.0

42.5

42.1a

2011

28.2

28.7

32.3

42.0

2012

29.5

28.0

42.5

42.5

2013

24.6

26.6

41.1

40.3

2014

24.6

24.1

44.1

40.1

2015

23.3

23.3

45.6

40.1

2016

23.3

24.3

45.6

39.2

2017

21.9

 

46.0

 

Source: HUD Congressional Budget Justifications for FY1996-FY2017 and the explanatory materials accompanying the FY2016 Consolidated Appropriations Act, P.L. 114-113, in the Congressional Record, vol. 161, part 184, Book III (December 17, 2015), p. H10448.

Note: Amounts for the President's FY2010 and FY2011 budget requests do not include funding proposed for the Transformation Initiative.

a. The President's budget request for FY2010 included additional FHIP funding to address mortgage fraud. While Congress appropriated additional funds for FHIP, the conference report stated "The conferees do not propose a separate set-aside for work on mortgage rescue scams as proposed by the Senate since these activities are already being funded as part of the program." See H.Rept. 111-366.

Author Contact Information

[author name scrubbed], Specialist in Housing Policy ([email address scrubbed], [phone number scrubbed])

Footnotes

1.

42 U.S.C. §3601 et seq.

2.

42 U.S.C. §3617.

3.

For more information, see the section of the report entitled "Requirement for HUD and Grant Recipients to Affirmatively Further Fair Housing (AFFH)."

4.

42 U.S.C. §3603. For more information about this exception, see CRS Report 95-710, The Fair Housing Act (FHA): A Legal Overview, by [author name scrubbed] and [author name scrubbed].

5.

42 U.S.C. §3607(a).

6.

42 U.S.C. §3602(k).

7.

42 U.S.C. §3607(b).

8.

Although the term "disability" has come to be preferred, the Fair Housing Act still uses the word "handicap."

9.

42 U.S.C. §3602(h).

10.

24 C.F.R. §100.201.

11.

Ibid.

12.

Unless otherwise noted, prohibited activities are listed at 42 U.S.C. §3604.

13.

42 U.S.C. §3605.

14.

42 U.S.C. §3617.

15.

42 U.S.C. §3610(f).

16.

42 U.S.C. §3610(g)(2)(C).

17.

U.S. Department of Housing and Urban Development, Annual Report on Fair Housing, FY2012-2013, November 7, 2014, p. 27, http://portal.hud.gov/hudportal/documents/huddoc?id=2012-13annreport.pdf (hereinafter FY2012-2013 Annual Report on Fair Housing).

18.

42 U.S.C. §3610(a).

19.

42 U.S.C. §3610(g).

20.

42 U.S.C. §3610(b).

21.

42 U.S.C. §3610(g), 24 C.F.R. §103.400.

22.

See HUD's website at http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/complaint-process, accessed March 1, 2016.

23.

42 U.S.C. §3610(g), 24 C.F.R. §103.405.

24.

42 C.F.R. §3612.

25.

FY2012-2013 Annual Report on Fair Housing, p. 33.

26.

42 U.S.C. §3612(g)(3).

27.

FY2012-2013 Annual Report on Fair Housing, p. 142.

28.

Ibid., p. 18.

29.

Ibid., p. 29.

30.

Kenneth Temkin, Tracy McCracken, and Veralee Liban, Study of the Fair Housing Initiatives Program, U.S. Department of Housing and Urban Development, May 2011, p. 21, https://www.huduser.gov/portal//Publications/pdf/FHIP_2011.pdf.

31.

42 U.S.C. §3610(f)(3).

32.

42 U.S.C. §3610(f)(1).

33.

See, for example, Housing and Home Finance Agency, Fair Housing Laws: Summaries and Text of State and Municipal Laws (Washington, DC: U.S. Government Printing Office, 1964). See also U.S. Congress, Senate Committee on Banking and the Currency, Subcommittee on Housing and Urban Affairs, S. 1358, S. 2114, and 2280 Relating to Civil Rights and Housing, 90th Cong., 1st sess., August 21-23, 1967, pp. 491-496.

34.

U.S. Department of Housing and Urban Development, FY1980 Budget Justifications, p. Q-2.

35.

U.S. Department of Housing and Urban Development, FY1981 Budget Justifications, p. P-7.

36.

U.S. Department of Housing and Urban Development, FY2017 Budget Justifications, p. 33-5, http://portal.hud.gov/hudportal/documents/huddoc?id=36-FY16CJ-FHPrograms.pdf and FY2009 Budget Justifications, p. O-3, http://archives.hud.gov/budget/fy09/cjs/fheo1.pdf.

37.

24 C.F.R. §115.302 and §115.304.

38.

HUD regulations spell out criteria that must be in state and local laws. 24 C.F.R. §115.204. See also, U.S. Department of Housing and Urban Development, Annual Report on Fair Housing, FY2012-2013, November 7, 2014, p. 17, http://portal.hud.gov/hudportal/documents/huddoc?id=2012-13annreport.pdf.

39.

U.S. Department of Housing and Urban Development, Annual Report on Fair Housing, FY2012-2013, November 7, 2014, p. 18.

40.

Ibid., p. 30.

41.

42 U.S.C. §3616a. A fourth activity, the Administrative Enforcement Initiative, is not currently funded. U.S. Department of Housing and Urban Development, Fair Housing Initiatives Program Application and Award Policies and Procedures Guide, July 2015, p. 246, http://portal.hud.gov/hudportal/documents/huddoc?id=fhipappguide729.docx. The Administrative Enforcement Initiative funded state and local governments that administer laws that are substantially equivalent to the federal Fair Housing Act. 24 C.F.R. §125.201. However, these entities already receive funding under FHAP.

42.

42 U.S.C. §3616a(b), 24 C.F.R. §125.401.

43.

42 U.S.C. §3616a(h).

44.

42 U.S.C. §3616a(d), 24 C.F.R. §125.301.

45.

See, for example, U.S. Department of Housing and Urban Development, FY2015 Fair Housing Initiatives Notice of Funding Availability, July 21, 2015, http://portal.hud.gov/hudportal/documents/huddoc?id=2015fhipnofa.pdf.

46.

42 U.S.C. §3616a(c), 24 C.F.R. §125.501.

47.

U.S. Department of Housing and Urban Development, "HUD Awards $38 Million to More than 100 Groups to Fight Housing Discrimination," press release, September 30, 2015, http://portal.hud.gov/hudportal/HUD?src=/press/press_releases_media_advisories/2015/HUDNo_15-121.

48.

See H.Rept. 111-366. "The conferees do not propose a separate set-aside for work on mortgage rescue scams as proposed by the Senate since these activities are already being funded as part of the program."

49.

The National Fair Housing Alliance reports data on complaints in its annual Fair Housing Trends Report, available at http://www.nationalfairhousing.org/FairHousingResourceCenter/ReportsandResearch/tabid/3917/Default.aspx.

50.

For example, in its 2015 Annual Fair Housing Trends Report, the National Fair Housing Alliance reported 19,000 complaints investigated by nonprofit fair housing organizations in FY2014.

51.

See U.S. Department of Housing and Urban Development, The State of Fair Housing, FY2008 Annual Report on Fair Housing, http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_12309.pdf; and Annual Report on Fair Housing, FY2012-FY2013, November 7, 2014, http://portal.hud.gov/hudportal/documents/huddoc?id=2012-13annreport.pdf.

52.

FY2008 Fair Housing Annual Report, p. 31; and FY2012-FY2013 Fair Housing Annual Report, p. 17.

53.

See the National Fair Housing Alliance FY2008 and FY2013 Fair Housing Trends Reports, available at http://www.nationalfairhousing.org/FairHousingResourceCenter/ReportsandResearch/tabid/3917/Default.aspx.

54.

42 U.S.C. §3604(f)(3)(A).

55.

See Reasonable Modifications Under the Fair Housing Act, Joint Statement of The Department of Housing and Urban Development and the Department of Justice, March 5, 2008, p. 4, http://www.hud.gov/offices/fheo/disabilities/reasonable_modifications_mar08.pdf.

56.

42 U.S.C. §3604(f)(3)(B).

57.

Reasonable Accommodations Under the Fair Housing Act, Joint Statement of the Department of Housing and Urban Development and the Department of Justice, May 17, 2004, http://www.nhl.gov/offices/fheo/library/huddojstatement.pdf.

58.

Ibid., p. 7.

59.

HUD, Annual Report on Fair Housing, FY2012-2013, November 7, 2014, p. 22, http://portal.hud.gov/hudportal/documents/huddoc?id=2012-13annreport.pdf.

60.

For more information, see CRS Report 95-710, The Fair Housing Act (FHA): A Legal Overview, by [author name scrubbed] and [author name scrubbed].

61.

U.S. Department of Housing and Urban Development, "Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity," 77 Federal Register 5662-5676, February 3, 2012, http://portal.hud.gov/hudportal/documents/huddoc?id=12lgbtfinalrule.pdf.

62.

24 C.F.R. §5.105(a)(2)(i).

63.

24 C.F.R. §5.105(a)(2)(ii).

64.

U.S. Department of Housing and Urban Development, Notice CPD-15-02, Appropriate Placement for Transgender Persons in Single-Sex Emergency Shelters and Other Facilities, February 20, 2015, https://www.hudexchange.info/resources/documents/Notice-CPD-15-02-Appropriate-Placement-for-Transgender-Persons-in-Single-Sex-Emergency-Shelters-and-Other-Facilities.pdf.

65.

U.S. Department of Housing and Urban Development, "Equal Access in Accordance With an Individual's Gender Identity in Community Planning and Development Programs," 80 Federal Register 72642, November 20, 2015.

66.

Ibid., pp. 72646-72647.

67.

24 C.F.R. §5.100.

68.

80 Federal Register 72648.

69.

U.S. Department of Housing and Urban Development, Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions, April 4, 2016, https://portal.hud.gov/hudportal/documents/huddoc?id=HUD_OGCGuidAppFHAStandCR.pdf.

70.

Ibid., p. 10.

71.

Ibid.

72.

42 U.S.C. §3608(d), (e)(5).

73.

See, for example, NAACP v. HUD, 817 F.2d 149, 155 (1st Cir. 1987) ("Finally, every court that has considered the question has held or stated that Title VII imposes upon HUD an obligation to do more than simply refrain from discriminating (and from purposefully aiding discrimination by others)").

74.

Otero v. New York City Housing Authority, 484 F.2d 1122, 1134 (2nd Cir. 1973).

75.

NAACP v. HUD, 817 F.2d at 155.

76.

Statutory requirements are at 42 U.S.C. §5304(b)(2) (CDBG) and 42 U.S.C. §1437c-1(d)(16) (Public Housing Authorities). Regulations require recipients of HOME, HOPWA, and ESG funds to affirmatively further fair housing as part of the consolidated planning process. See 24 C.F.R. §91.225, §91.325, and §91.425. Prior to the consolidated plan, recipients were required to affirmatively further fair housing as part of the Comprehensive Housing Affordability Strategy (P.L. 101-625).

77.

See, for example, U.S. Department of Housing and Urban Development, General Section to HUD's Fiscal Year 2016 Notice[s] of Funding Availability for Discretionary Programs, September 22, 2015, p. 8, http://portal.hud.gov/hudportal/documents/huddoc?id=2016nofa-gensec.pdf.

78.

The consolidated plan is a community's description of how it hopes to integrate decent housing, community needs, and economic needs of low- and moderate-income residents over a three- to five-year time span. 24 C.F.R. §91.1(a). Communities submit annual action plans that explain how funding will be used to address goals in the consolidated plans. PHAs submit annual and five-year plans. Part of the annual plan is a certification that PHAs will affirmatively further fair housing, http://portal.hud.gov/hudportal/documents/huddoc?id=HUD-50077-CR-2-10.pdf.

79.

Department of Housing and Urban Development, "Affirmatively Furthering Fair Housing," 80 Federal Register 42272, July 16, 2015.

80.

Ibid., p. 42276.

81.

Ibid., p. 42278.

82.

For FY2016 HUD funding, the House adopted H.Amdt. 399 to H.R. 2577, but the amendment was not included in the final appropriation act. While considering the FY2017 HUD funding bill (also H.R. 2577), an amendment to withhold funding was proposed, but ultimately tabled (S.Amdt. 3897).

83.

24 C.F.R. §5.160.

84.

See 2014 regulations for CDBG entitlement communities at 24 C.F.R. §570.601. Regulations for the consolidated plan process are the 2014 versions of 24 C.F.R. §91.225 (local governments), §91.325 (state governments), and §91.425 (consortia applicants).

85.

24 C.F.R. §903.7(o) (2014).

86.

U.S. Department of Housing and Urban Development, Fair Housing Planning Guide Volume 1, March 1996, http://www.hud.gov/offices/fheo/images/fhpg.pdf.

87.

Ibid., p. 2-8.

88.

Ibid., pp. 2-9 to 2-10.

89.

Ibid., p. 2-21.

90.

Ibid., p. 2-24.

91.

Ibid., p. 2-6.

92.

U.S. Department of Housing and Urban Development, Office of Policy Development and Research, Analysis of Impediments Study: Draft, January 27, 2009, https://ia801002.us.archive.org/20/items/365748-hud-reporting-compliance-report/365748-hud-reporting-compliance-report.pdf; and U.S. Government Accountability Office, Housing and Community Grants: HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions' Fair Housing Plans, GAO-10-905, September 2010, http://www.gao.gov/new.items/d10905.pdf.

93.

GAO, Housing and Community Grants: HUD Needs to Enhance Its Requirements and Oversight of Jurisdictions' Fair Housing Plans, pp. 32-33.

94.

24 C.F.R. §5.154.

95.

24 C.F.R. §5.154.

96.

HUD, Affirmatively Furthering Fair Housing (AFFH) Data Documentation, p. 11, https://www.hudexchange.info/resources/documents/AFFH-Data-Documentation.pdf.

97.

Ibid., p. 9.

98.

Assessment of Fair Housing Tool for entitlement communities, pp. 3-5, https://www.hudexchange.info/resources/documents/Assessment-of-Fair-Housing-Tool.pdf.

99.

24 C.F.R. §5.152.

100.

See, for example, http://www.huduser.org/portal/sites/default/files/pdf/AFFH_AssessmentTool_OptionA.pdf.

101.

24 C.F.R. §5.154(d).

102.

24 C.F.R. §5.158.

103.

24 C.F.R. §5.156.

104.

24 C.F.R. §5.152.

105.

Ibid.

106.

24 C.F.R. §5.162.

107.

Ibid.

108.

Ibid.

109.

24 C.F.R. §5.166.

110.

For PHAs, see 24 C.F.R. §903.15, for consolidated plan participants, see 24 C.F.R. §§91.225, 91.325, and 91.425.

111.

80 Federal Register 42288.

112.

12 U.S.C. §1701u and 24 C.F.R. §135.3(a)(3)

113.

HUD FAQs, http://www.hud.gov/offices/fheo/section3/FAQ08.pdf.

114.

24 C.F.R. §135.30.

115.

U.S. Department of Housing and Urban Development, "Economic Opportunities for Low- and Very Low-Income Persons," 59 Federal Register 33888, June 30, 1994.

116.

U.S. Department of Housing and Urban Development, "Creating Economic Opportunities for Low- and Very Low-Income Persons and Eligible Businesses Through Strengthened 'Section 3' Requirements," 80 Federal Register 16520, March 27, 2015.

117.

HUD, in its proposed rule, states that it considers the PHA requirement to "make best efforts" to be the same as the "greatest extent feasible" requirement applied to other grantees. 59 Federal Register, p. 16520.

118.

42 U.S.C. §2000d.

119.

See Department of Justice, "Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficiency Persons," 67 Federal Register 41457, June 18, 2002.

120.

Executive Order 13166, "Improving Access to Services for Persons With Limited English Proficiency," 65 Federal Register 50121-50122, August 16, 2000.

121.

U.S. Department of Housing and Urban Development, "Final Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons," 72 Federal Register 2732, January 22, 2007.

122.

Ibid., p. 2740.

123.

Ibid.

124.

Ibid., p. 2476. See also 28 C.F.R. §§42.106-42.107.

125.

U.S. Department of Housing and Urban Development, FY2015 Budget Justifications, p. D-8, http://portal.hud.gov/hudportal/documents/huddoc?id=fy15cj_fair_hsng_prog.pdf.

126.

U.S. Department of Housing and Urban Development, FY2017 Budget Justifications, p. 33-6, http://portal.hud.gov/hudportal/documents/huddoc?id=33-FairHSNGPrograms.pdf.